Tuesday, 26 February 2019
Department of Justice and Equality
249. To ask the Tánaiste and Minister for Justice and Equality when the review into the legal aid scheme terms and conditions was initiated; when it was concluded; if the terms and conditions are the responsibility of his Department; the rationale for removing the automatic entitlement to junior counsel; the rationale for reducing the fees allowed for both Circuit Court and High Court cases; his views on whether this will lead to an imbalance in personal insolvency cases between creditors and debtors; and if he will make a statement on the matter. [9259/19]
I would refer the Deputy to the detailed material provided in response to his previous questions No. 299 and No. 300 of 19th February on this matter.
In addition to the information provided then, I can add that the Legal Aid Board requested a specified number of adjustments to legal aid fees payable under the Abhaile scheme, in October 2018. The changes were considered and approved, in the light of two years' experience in the operation of the scheme. They were notified to barristers and solicitors by the Legal Aid Board at the end of January 2019.
As outlined in the reply to Questions 299 and 300 of 19 February, the adjustments to the Legal Aid Board fees do not constitute an overall review of the terms and conditions for legal aid under Abhaile. As the Deputy is aware from previous replies, the normal fees for a PIP or solicitor for a defended legal aid case under Abhaile remain unchanged. There has been no change to the eligibility criteria for borrowers, and no change to the provision of legal aid under Abhaile free of charge to the borrower.
As previously outlined, in relation to representation by counsel: a borrower will continue to be represented in s.115A cases by a personal insolvency practitioner, a solicitor, and as needed, by junior and senior counsel.
The Board has indicated that barristers will not be approved automaticallyin every case. There is no other area of civil legal aid where that is the case – and it is obvious that it may not always be necessary to approve counsel, for example, in a personal insolvency review case which is undefended.
However, the revised terms and conditions set out by the Legal Aid Board expressly indicate that in personal insolvency review cases, junior and (as needed) senior counsel will continue to be approved ‘where there are legal complexities that require the involvement of counsel’ and this is expressly explained as including where a creditor raises legal issues that need to be argued by a barrister in court. Counsel may also be approved on a case by case basis if there are exceptional circumstances, at the Board’s discretion.
Many personal insolvency review cases raise complex questions of law. I and my Department are fully aware of the nature of the cases brought and decided over the past three years. Indeed, in January this year, on the launch of the Abhaile second year Report, I specifically underlined the priority that I attach to the good work being done under Abhaile, and to ensuring that the personal insolvency review can function effectively.
As outlined in the reply of 19 February, two reasonable changes are being introduced to the fees payable for all professionals. First, the full fee will not be payable in undefended cases, where no creditor opposes the court review. Secondly, personal insolvency cases often involve parallel applications by both partners, where a couple has the same home mortgage. In practice, the vast majority of parallel applications are treated by the courts as one single case. There is no reason for taxpayers to cover two full fees in such cases, and they will be payable at a full fee for one spouse and a reduced (10%) fee for the second spouse, representing the actual extra work involved.
These are manifestly reasonable changes.
Finally, barristers’ fixed fees are being reduced, but only to bring them into line with fees payable in other areas of civil legal aid where complex legal or procedural issues also arise.